McNichols v. Klutznick, 80-2023

• Decision Date: 17 March 1981
• Docket Number: No. 80-2023,80-2023
• Citation: 644 F.2d 844
• Parties: William H. McNICHOLS, Jr., Individually and in his official capacity as Mayor of the City and County of Denver, et al., Plaintiffs-Appellees, v. Philip M. KLUTZNICK, in his official capacity as the Secretary of the U. S. Department of Commerce, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 844

644 F.2d 844

William H. McNICHOLS, Jr., Individually and in his official capacity as Mayor of the City and County of Denver, et al., Plaintiffs-Appellees, v. Philip M. KLUTZNICK, in his official capacity as the Secretary of the U. S. Department of Commerce, et al., Defendants-Appellants.

No. 80-2023.

United States Court of Appeals Tenth Circuit.

March 17, 1981.

John F. Cordes, Civil Division, Dept. of Justice, Washington, D. C. (Alice Daniel, Asst. Atty. Gen., and Leonard Schaitman, Atty., Civil Division, Dept. of Justice, Washington, D. C., and Joseph F. Dolan, U. S. Atty. for the District of Colorado, Denver, Colo., with him on the briefs), for defendants-appellants.

George J. Cerrone, Jr., Asst. City Atty., Denver, Colo. (Max P. Zall, City Atty. for the City and County of Denver, Denver, Colo., with him on the brief), Denver, Colorado, for plaintiffs-appellees.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

The action underlying this properly certified interlocutory appeal is a challenge to the population count reached by the Bureau of Census for the City of Denver, Colorado. The focal point of the litigation at this stage is the plaintiffs' charge that the Bureau has "over-counted" the number of vacant housing units in Denver. The plaintiffs, asserting their interests in the census count's effect on congressional representation and in various federal grants based on census figures, sought discovery of the Bureau's list of addresses of Denver's allegedly vacant housing units. The information sought by the plaintiffs is derived from the Bureau's questionnaire program and follow-up interviews. The Bureau resisted discovery because of the express prohibitions of 13 U.S.C. § 9(a) which provides:

9. Information as confidential; exception

(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title

(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or

(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or

(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.

No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.

Notwithstanding the express language of the statute and the "emphatically expressed intent of Congress to protect census information," Seymour v. Barabba, 559 F.2d 806, 809 (D.C.Cir.1977), the district court:

ORDERED that the defendants shall produce the FARs ¹ for the City and County of Denver to the plaintiffs, or the defendants may, alternatively, produce a list derived from the FARs which simply lists the addresses of those living units in the City and County of Denver which the Bureau has determined to have been vacant on April 1, 1980....

Record, vol. 1, at 37. The court's order tacitly acknowledged that it constituted an evasion of congressionally mandated confidentiality by directing that plaintiffs' personnel who received the address lists should be sworn to the same oath of secrecy and confidentiality as required by the personnel of the Bureau of Census and by otherwise limiting any further publication of the ordered information.

There can be no question that Congress has the power to make census information gathered at its direction immune from discovery. Both the history of the Census Act and the broad language of the confidentiality provisions of § 9 make abundantly clear that Congress intended both a rigid immunity from publication or discovery and a liberal construction of that immunity that would assure...